A contravention or breach of a court order occurs in multiple scenarios in family law.
If you are the aggrieved party of a breach of a court order, it is important that you understand that the only way the Court can penalise someone for that breach is for you to file an application with the Court alleging that breach, or non-compliance with the Orders.
The following article will discuss the most frequently asked questions in relation to a breach of Court orders.
What To Do When Someone Breaches a Court Order?
When someone breaches Court orders, your first line of action should be to seek some legal advice as soon as possible. This is because every situation is different, and so the action you undertake will depend on your unique circumstances.
To commence action in relation to someone’s breach of Court orders, you must file the following documents in Court:
- An application for contravention of Court Orders with a supporting affidavit; and
- An affidavit for non-filing of a family dispute resolution certificate or a certificate from a family dispute resolution practitioner; and
- A copy of the existing orders.
What Is A Reasonable Excuse For a Breach Of Court Orders?
The law defines compliance with Court Orders as taking all reasonable steps necessary to comply with the order.
This ‘reasonable steps’ requirement recognises that sometimes circumstances may have changed which have made it impossible to comply with an order.
The following are reasonable excuses in the eyes of the Court:
- The person who breached the order genuinely did not understand their obligations; or
- The person who breached the order held the genuine belief on reasonable grounds that their breach of the Court order was necessary to protect the safety or health of either themselves or another person; and
- A contravention due to the reason above did not last any longer than what was necessary to protect that person.
What Happens If I Take The Matter To Court?
If you pursue a breach of a Court order in Court, the Court will come to one of the following conclusions:
- The breach of Court order was not sufficiently proven; or
- The breach of Court order was proven; however, the defendant had a reasonable excuse; or
- There was a highly serious, or less serious contravention without a reasonable excuse.
If the outcome of the case is that there was a breach without a reasonable excuse, the person who breached the Court orders will likely be penalised in one of the following ways depending on the severity of the breach:
- Imposing a prison sentence; or
- Ordering a fine be paid; or
- Requiring both parties to attend a parenting course for separated parents; or
- Requiring the person who breached the orders to pay some or all of the legal costs of the applicant;
- Ordering that compensation be paid for the time and/or expense of the breaches;
- Making an order for community service; and
- Imposing a bond on the contravener of the orders.
The Court may make these orders without the need to have the contravener of the orders present in Court.
Can You Go To Prison For A Breach of Court Orders?
As mentioned above, you can go to prison for a breach of a Court order; however, it is usually a last resort as illustrated in the case example below:
D&C (Imprisonment for Breach Of Contact Orders) [2004] FamCA 814 2004
In this case, a mother was in repeated breach of Court orders which prevented her former partner and father of their children from contacting one another. She was accordingly given a good behaviour bond which imposed harsher consequences if the original orders were breached, and she almost immediately breached this bond.
The Court responded to this by making an order that she be imprisoned for 30 days due to her lack of compliance on multiple occasions.
The reasoning for her imprisonment was because it seemed unlikely that she would comply given her past incompliance. Following this, the mother appealed to the Court and had the remaining eighteen days of her sentence suspended on the grounds that she would comply with the orders moving forward.
Importance of Seeking Legal Advice
When discussing matters such as a breach of a Court order, it is important to note that every breach is different and will attract different consequences. To get a better understanding of what action you should undertake for a breach of a Court order, you should seek legal advice.
Please do not hesitate to contact out team of friendly and experienced family lawyers today. We are happy to help advise you on the next best steps to undertake for your particular situation.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way.
With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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